Lord Justice Jackson and the Judiciary respond to the MoJ consultation,Solving Disputes in the County Courts

Lord Justice Jackson, and the Lord Chief Justice and the Master of the Rolls on behalf of the judiciary as a whole, have submitted separate responses to the Ministry of Justice's consultation, Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation on reforming civil justice in England and Wales (March 2011) (see Lord Justice Jackson's Response to Ministry of Justice Consultation Paper CP6/2011 (24 June 2011)  and Judiciary of England and Wales: Solving disputes in the county courts: Response of the Lord Chief Justice and the Master of the Rolls on behalf of the Judiciary).

The consultation, which closed on 30 June 2011, proposes significant reforms, including:

• Mandatory directions for certain claims.

• Changes to the financial limits for claims in the High Court.

• Automatic mediation procedures.

Jackson LJ’s response

Jackson LJ’s response includes a number of observations about the government’s proposals relating to ADR, including the following:

• Jackson LJ agrees that alternative dispute resolution (particularly mediation) should be encouraged, but does not support compulsory mediation, in part due to concerns that it can increase cost and delay. He supports the proposals for an accreditation scheme for mediators (noting that problems have arisen due to fragmentation, with different mediators in different organisations providing services not always of uniform quality) and the introduction of a single authoritative mediation handbook.

• In terms of higher value claims, Jackson LJ considers that an information pack about mediation should be sent to the parties in every case. He suggests that the extent to which a judge should recommend mediation at the first case management conference will depend on the circumstances of each case. He is in favour of proposals for improved training (for judges and lawyers) on mediation and steps to increase public awareness of the benefits of mediation.

• Jackson LJ does not agree that the EU Mediation Directive (Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters) should be extended to apply to domestic cases, suggesting that this would add a raft of unwelcome rules to no useful purpose.

Judiciary response

The response submitted on behalf of the judiciary also comments on the ADR-related proposals. Some points to note, include:

• The judiciary recognise the benefits of ADR, but caution that it is not suitable for resolving all civil disputes. They highlight the need for courts to remain in control of the progress of proceedings. They consider that it is essential to have a proper, rigorous accreditation system. They also support "automatic referral to mediation" for small claims, if that means requiring parties to speak to a court-based mediator (subject to certain exemptions). However, they do not support a system of compulsory mediation.

• In terms of small claims mediation, the judiciary support the continuation of telephone mediation as a proportionate and effective approach, plus face-to-face mediation, where possible. They would not support a mandatory requirement to refer small claims to mediation if the service was to be provided by outside agencies. In their view, it would be wrong to require a small claim litigant to engage with a commercial mediator, rather than using the small claims track which has been designed for small claims.

• The judiciary see little point in introducing compulsory mediation information sessions for cases up to £100,000. They reiterate that the appropriate way to ensure speedy resolution of disputes is for the courts to remain in control of the process.

• Members of the judiciary do not support the proposal to extend requirements of the EU Mediation Directive (Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters) to domestic cases, suggesting that would be unnecessary and disproportionate.

The Ministry of Justice plans to publish its consultation response by the end of October 2011. It will detail the proposals that the government plans to take forward.